The Closest We Have Come to a Constitutional Crisis

In the second Trump term, that is.

Early in the second Trump administration, amid a lot of talk that the U.S. had entered into a “constitutional crisis,” I laid out when I will use that language: If the executive branch attempts to take a certain action, the judicial branch rules that action is illegal, and the executive continues to take the action anyway.

I promised to keep you updated if we ever reached that point; on Saturday — Day 54 of the second Trump term — the administration brought us as close to a credible application of that description as we have seen so far. There are still a lot of questions yet to be answered, but I want to walk you through what we do know at this point. As it turns out, whether or not the world’s greatest experiment with democracy has been mired in a constitutional crisis may depend on the timing of a flight path.

Let’s start at the beginning: on Friday, President Trump signed a proclamation invoking the Alien Enemies Act of 1798, a John Adams-era law that states the following:

Whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.

To put it more simply: if a “foreign nation or government” is waging war or perpetrating an “invasion” against the U.S., the president is empowered to deport any male natives or subjects of the “foreign nation or government” who are in the U.S., at least 14 years old, and not naturalized U.S. citizens.

Trump’s proclamation declared that Tren de Aragua, or TdA — a transnational gang based in Venezuela — is a) “closely aligned with” Nicolas Maduro’s government in Venezuela and b) engaging in “mass illegal migration to the United States,” which makes it c) a “hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States.”

As a result, Trump empowered immigration officials to apprehend and deport “all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents.”

Trump’s directive wasn’t publicly posted on the White House website until Saturday afternoon, but as rumors began to circulate about the proclamation Saturday morning, American Civil Liberties Union (ACLU) lawyers sued the administration on behalf of five Venezuelan men in immigration custody whom the lawyers believed were going to be imminently deported.

The Alien Enemies Act has “only ever been a power invoked in time of war, and plainly only applies to warlike actions: it cannot be used here against nationals of a country—Venezuela—with whom the United States is not at war, which is not invading the United States, and which has not launched a predatory incursion into the United States,” the lawsuit alleged. (The 1798 law has been invoked at three separate points in U.S. history: during the War of 1812, World War I, and World War II, when it formed the legal basis for Japanese internment.)

On top of the alleged wrongful usage of the act, the lawsuit claimed that three of the five men are not even members of TdA; one of them, the ACLU said, was only accused of being so because of his tattoos. The man “is a professional tattoo artist, and his two tattoos a rose and skull on his leg, which cover a monkey tattoo that he no longer liked, and an eye with a clock inside it, which a fellow tattoo artist applied as practice—neither are associated with Tren de Aragua,” the lawsuit added.

Judge James Boasberg, an Obama-appointed federal district judge in Washington, D.C., convened a video hearing Saturday night to consider an ACLU motion to temporarily block deportations under the Alien Enemies Act. Between 5:20 p.m. and 6 p.m. ET, the hearing paused for a break; during that time, according to the Washington Post, two flights believed to be carrying Venezuelans being deported under the Alien Enemies Act took off.

At 6:47 p.m., after the hearing resumed, Boasberg sided with the ACLU, telling the Trump administration’s lawyers:

Any plane containing these folks that is going to take off or is in the air needs to be returned to the United States, but those people need to be returned to the United States. However that’s accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately.

At 7:26 p.m., the judge published his directive in a written order, blocking the government from removing “all noncitizens in U.S. custody” subject to the Alien Enemies Act proclamation for at least 14 days.

But ten minutes later, at 7:36 p.m., a third flight believed to be carrying Venezuelans covered by the order took off from Texas. None of the three flights turned around — despite Boasberg’s oral instruction that they do so — and each landed in El Salvador after midnight.

According to Fox News, the planes were carrying 261 people, including 137 deported under the Alien Enemies Act.

El Salvador prison guard transporting the alleged Venezuelan gang members after they were deported from the U.S. (Photo by the El Salvador president’s office)

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In response to allegations that this chain of events constituted a violation of Boasberg’s order, the Trump administration has simultaneously responded that: a) Boasberg’s order was illegal, but also b) the administration complied with it as best it could.

In a court filing on Sunday — signed by Attorney General Pam Bondi and her two top deputies, none of whom normally sign such filings — the Justice Department wrote that Boasberg had interfered with “the president’s exercise of powers vested in him by Article II” of the Constitution. Still, they said, they had notified their clients (the Trump administration) of the judge’s order, and the five Venezuelans who brought the lawsuit have not been removed.

However, the administration lawyers added, “some gang members subject to removal under the Proclamation had already been removed from United States territory under the Proclamation before the issuance of this Court’s second order.”

White House press secretary Karoline Leavitt tried out the same two-step this morning: “The administration did not ‘refuse to comply’ with a court order,” she wrote. “The order, which had no lawful basis, was issued after terrorist TdA aliens had already been removed from U.S. territory.”

Neither of the two claims the administration is making — that Boasberg was acting beyond his powers and that some planes carrying TdA members had already left the U.S. before the order — should impact whether the Trump administration has to comply with a judicial order.

The first claim could be easily addressed by the administration filing an appeal, which they did on Sunday, calling Boasberg’s order a “massive, unauthorized imposition” on executive authority. The second claim is arguably irrelevant, since judicial orders constraining the executive branch don’t lose their luster at the water’s edge. (It’s not as if, for example, an order directed at the State Department doesn’t have to be followed at foreign embassies, or an order directed at the Defense Department can be ignored if troops are overseas.)

White House officials appear to believe otherwise. “There was a discussion about how far the judge’s ruling can go under the circumstances and over international waters and, on advice of counsel, we proceeded with deporting these thugs,” one official told Axios. Another added: “They were already outside of U.S. airspace. We believe the order is not applicable.”

In a filing this morning, the ACLU lawyers requested that Boasberg direct the Trump administration to submit sworn declarations answering five questions:

1. Whether any flight with individuals subject to the Proclamation took off after either the Court’s written or oral Orders were issued;

2. Whether any flight with individuals subject to the Proclamation landed after either the Court’s written or oral Orders were issued;

3. Whether any flight with individuals subject to the Proclamation was still in the air after either the Court’s written or oral Orders were issued; and

4. Whether custody of any individuals subject to the Proclamation was transferred to a foreign country after either the Court’s written or oral Orders were issued.

If reports about the flight paths are accurate, the answer to all five questions would appear to be “yes”: one flight took off after the orders were issued; all three flights landed, were in the air, and transferred custody of their passengers after the orders were issued. The only asterisk is whether the passengers of the flights were being transferred under the Alien Enemies Act or a different executive authority: the DOJ filing seems to raise this possibility, by writing that “Federal Defendants will continue to protect the United States using authorities other than the Proclamation.” Was a different authority used in the case of these three flights?

I’ll hold off on making any definitive pronouncements until we receive clarity on the timeline of the flights, who exactly was being transported in each of them, and the authority they were being transported under. But the information we have so far strongly suggests that the Trump administration opted to ignore the judge’s order, either because they thought it was excessive or because the planes had already left U.S. airspace. (Even though one of the flights believed to be carrying Venezuelans under the proclamation did not leave U.S. airspace until after the order was issued.)

We should learn more in a hearing at 4 p.m. ET today, when Judge Boasberg has told the government to “be prepared to provide answers” to the ACLU’s questions. I’ll keep you posted as more information emerges; for now, I want to make two more observations:

1. Separately from the question of whether the administration complied with Boasberg’s order, the White House seems incredibly comfortable openly mocking judicial authority. On Sunday, El Salvador president Nayib Bukele — who agreed to detain the deported Venezuelans in his prisons — posted a screenshot of a New York Post article noting that Boasberg had ordered the Trump administration not to carry out the deportations. “Oopsie… Too late 😂” Bukele wrote. Secretary of State Marco Rubio then reposted the message.

White House communications director Steven Cheung also reposted Bukele, adding an approving GIF.

Whether or not the administration is following the judicial orders in substance — the Justice Department, notably, is still claiming compliance — this marks a notable rhetorical escalation from the Trump administration towards the judiciary. “Every federal judge who dares to obstruct President Trump’s agenda must be impeached—end of story,” Rep. Mary Miller (R-IL) wrote on Sunday, appearing to suggest that the very act of a judge ruling against a presidential administration (a commonplace occurrence throughout U.S. history) rises to the level of an impeachable offense, which would be a radical reimagining of the constitutional order.

White House senior adviser Elon Musk also promoted the calls for Boasberg to be impeached. The White House has already been itching for a fight on nationwide injunctions (the decades-old practice of a single district judge blocking an administration from carrying out its order across the country); it seems they may now be getting, either by challenging the constitutionality of Boasberg’s order in higher courts or in a congressional impeachment trial.

Importantly, Trump officials seem confident that the politics of this dispute will be on their side. “If the Democrats want to argue in favor of turning a plane full of rapists, murderers, and gangsters back to the United States, that’s a fight we are more than happy to take,” Leavitt, the White House press secretary, said to Axios.

2. This dispute cuts at the tension between how the executive and judicial branches operate. “The executive branch gets a clear head-start in all this, allowing Trump and Musk to constantly be setting a flurry of actions into motion — possibly creating long stretches of intermediate confusion — but, as long as the executive branch continues to follow its orders, the judicial branch will always get the final, clarifying word,” I wrote in my original piece on constitutional crises.

This dynamic is on full display in this case: the Trump administration will always be able to deport people faster than judges can prevent it, inevitably giving the executive the upper hand. Ultimately, I wrote, the philosophy of “move fast and break things” — though it may seem like an advantage — will hurt the Trump team, since judges tend to punish executives who are moving so quickly that they violate the law.

“Move fast, fine,” one federal judge said at a hearing last week. “Break things? If that involves breaking the law, then that becomes problematic.”

But all this hinges on the executive branch following the judicial branch’s orders. If they don’t — and they might not have here — “move fast and break things” can suddenly only be constrained by less likely remedies, such as impeachment.

That this dispute revolves around a presidential declaration of an invasion also speaks to a key loophole in the American system: the laws and precedents, including the Alien Enemies Act, that give the president enhanced powers during an emergency. This is clearly necessary to some degree: precisely because the executive branch moves much faster than Congress, it makes some amount of sense to delegate certain powers to the president in case of a true emergency, when waiting for 535 people to make up their minds could cost American lives.

But the trust baked into that dynamic is that the president will only use those powers in a true emergency. Last week, I noted how the president is using his emergency powers to advance his tariffs and how he could have used them during a government shutdown. Now, much of the legal dispute over his use of the Alien Enemies Act — a slightly separate question, it should be noted, from the legal dispute of whether Trump is complying with court orders — hinges on whether the U.S. has truly been invaded (and if by a “foreign nation or government”).

If we have, emergency presidential powers have been unlocked. If we haven’t, Trump is acting beyond his authority. But who gets to decide when an emergency invasion has begun? That’s the question the courts will now hash out.